For a state that claims to be the nation’s most enlightened defender of civil rights, California’s regular dismissal of even the most basic constitutional protections is an exercise in hypocrisy — at a minimum — and in ideology over rule of law in the worst case.

The 9th U.S. Circuit Court of Appeals, the nation’s most liberal, ruled recently that California cops can continue collecting DNA samples to put in a national database from everyone they arrest on a felony, even before that suspect has been proven guilty in a court of law and, worse, without a warrant or court order directing them to be collected.

“DNA analysis is an extraordinarily effective tool for law enforcement to identify arrestees, solve past crimes, and exonerate innocent suspects,” U.S. District Judge Milan Smith wrote for the three-judge majority. Moreover, the court said the government had a more compelling interest in collecting the genetic information than yet-to-be-convicted suspects did in protecting their privacy, let alone their right to assert they’re innocent untilprovenguilty.

Guilty until proven innocent?

The case stemsfrom a 2009 lawsuit filed by theAmerican Civil Liberties Unionon behalf of four California residents — who had been arrested but not convicted — against the officials who operate the state’s DNA collection system,Reutersreported. The suit asked a federal district court to bar the state from collecting the sample on anyone who was not convicted, but the lower court refused. The higher court upheld that ruling.

According to the law, anyone not convicted can request to have their sample removed from the national database, but that’s the same as suspects having to prove they are innocentfirst, a concept completely at odds with our justice system, which presumes innocence untilproven guilty.

“The majority allows the government to treat arrestees, who are presumed innocent, as if they’ve been convicted of some sort of crime,” said Michael Risher, the ACLU attorney who represented the plaintiffs. He said he would seek a review of the ruling by the full nine-member appeals panel.

A d v e r t i s e m e n t

One of the three federal judges on the appeals court, William Fletcher, agreed with the defense. In his dissent, he dismissed the “same as taking fingerprints” argument used by his two colleagues, writing that rather than being used to identify someone, DNA samples “are taken solely for an investigative purpose, without a warrant or reasonable suspicion.”

But the usurpation is only growing, emboldened by successful court challenges. Last year, the3rd U.S. Circuit Court of Appealsalso upheld police collection of DNA specimens from arrestees, saying they are “an accurate, unique, identifying marker – in other words, as fingerprints for the twenty-first century.”

More than a simple identification

That excuse begs the question: Why can’t suspects stilljustbe fingerprinted, if simple identification is all the authorities are seeking?

“Regarding fingerprinting, the U.S. Supreme Court has said for more than 30 years that it is not a search,”Risher toldWired.com. “But DNA, the method of taking it, is an invasion of our body. The more significant the invasion, the more justification the government needs.”

“Our position is before you take somebody’s genetic information, you need either a warrant or that person needs to be convicted of a felony with all the procedural protections anybody gets when you are charged and tried with a felony,” he added, noting that DNA samples, which are taken with a swab of the inside cheek, provide much more than simple identification, including a person’s family ties and potential health risks.